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Mountain Valley Pipeline faces political, regulatory changes in 2021

Mountain Valley Pipeline faces political, regulatory changes in 2021

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The history of the Mountain Valley Pipeline, from the time it was first proposed to its projected completion, will soon span the terms of three U.S. presidents.

So what impact will the incoming administration of Joe Biden — whose views on climate change and clean energy are the polar opposite of President Donald Trump’s — have on the deeply divisive natural gas pipeline?

It’s unlikely that a single action under Biden’s watch would kill the buried pipeline, much of it already in the ground despite legal action from environmental groups that has delayed construction and inflated its cost to about $6 billion.

But with federal agencies headed by Biden appointees and guided by his climate agenda, pipeline opponents say, the risk of a death by a thousand cuts is more likely.

“The developers behind MVP should be seriously weighing whether this project is still viable in a market and political atmosphere that favors clean energy and climate action,” said Lee Francis, deputy director of the Virginia League of Conservation Voters.

In 2014, when Mountain Valley first proposed building a 303-mile pipeline that will pass through the Roanoke and New River valleys, then-President Barack Obama largely embraced natural gas as a cleaner source of electricity than coal-burning power plants.

By the time the project was approved in 2017 by the Federal Energy Regulatory Commission, whose members are nominated by the president, Trump was taking a far more active role in promoting fossil fuels. Earlier this year, he sought to fast-track environmental reviews of dozens of major energy projects, including Mountain Valley.

Trump’s cabinet appointments of former oil and gas industry officials turned permitting agencies into “political operatives with clean air and water, and people’s health, falling victim,” Francis wrote in an email.

With those officials now on the way out, their replacements are likely to take a much harder look at the natural gas industry.

Michael Regan, Biden’s nominee to head the Environmental Protection Agency, is currently secretary of the North Carolina Department of Environmental Quality. In August, he rejected a water quality certification for Mountain Valley’s proposed Southgate extension into the Tar Heel state.

“This has always been an unnecessary project that poses unnecessary risks to our environment,” Regan said in a statement at the time.

When Regan’s selection was announced earlier this month, it drew high praise from Appalachian Voices, one of the environmental groups fighting Mountain Valley in court.

“More than ever, the country needs an EPA administrator who prioritizes and acts on climate change and environmental justice — two of the most pressing issues facing America today,” said Amy Adams, program manager for the group’s North Carolina chapter. “Michael Regan could be that administrator.”

But while pushing for a faster transition to renewable energy, Biden has not totally ruled out natural gas, which according to the U.S. Energy Information Administration was the country’s largest source of electricity generated in 2019.

“The President-Elect acknowledged the importance of natural gas during his campaign, and any serious plan to both address global climate change and develop a modern, reliable and affordable energy system must include natural gas as a foundational fuel,” the Interstate Natural Gas Association of America said in a statement following the election.

Mountain Valley spokeswoman Natalie Cox said the company does not expect the new administration to bring any major changes to the way it does business.

“Americans cannot simply flip a switch and transition to renewables without disruption, which the new administration also acknowledged,” she wrote in an email last week.

Yet an accelerated movement to renewable energy in recent years — combined with Mountain Valley’s slow pace in completing the largest natural gas pipeline ever proposed in Virginia — gives opponents hope.

“We are confident that the Biden administration will listen to scientists, experts and directly affected communities before making decisions on massive infrastructure projects,” said Nathan Matthews, a senior attorney with the Sierra Club.

An enhanced push for systemic change could convince investors to cut their losses and cancel the Mountain Valley project, its foes hope, as developers of the Atlantic Coast Pipeline did earlier this year.

“With the fracked gas industry collapsing while clean energy is surging, it’s not only a bad idea to build more fracked gas pipelines,” Matthews said. “It’s a good idea to walk away from the MVP.”

Fewer violations

By the end of 2018, Southwest Virginia had weathered a then-record 62.45 inches of precipitation, as recorded at Roanoke, for the year.

That was the same year that construction of the Mountain Valley Pipeline began, and problems soon followed. Company officials would later blame “unprecedented rainfall throughout the spring and summer” for its failures to control erosion and sedimentation along its 303-mile long construction zone.

Muddy runoff made its way to streams and rivers that became clogged with sediment, regulators in West Virginia and Virginia said in imposing a total of nearly $2.5 million in fines for more than 300 violations.

Fast forward to the present: 2020 has been rainier than 2018, yet the number of infractions by Mountain Valley is far smaller.

Part of that is likely due to a nearly yearlong stop-work order that was lifted in October, combined with a slowdown of activity in the midst of the coronavirus pandemic, said Roberta Bondurant, co-chair of the anti-pipeline coalition Protect Our Water, Heritage, Rights.

Bondurant said a citizens’ monitoring group, Mountain Valley Watch, continues to spot problems with erosion control.

But at a recent meeting, the State Water Control Board was told that of 40 field inspections conducted from Sept. 19 to Dec. 4, no major problems were detected. Investigation of another nine complaints filed by citizens during the same time period found no significant cases of noncompliance, Melanie Davenport, who heads the Department of Environmental Quality’s water permitting division, told the board.

While it might be assumed that the lesser number of violations in 2020 was the result of the lull in construction, that’s not necessarily the case, DEQ said in a written response to questions from The Roanoke Times.

“In areas where problems have been observed, controls have been strengthened, enhanced and upgraded above what was called for in the basic plan” to control erosion, the statement read. Typical erosion controls include silt fences, compost filter socks and water bars, or earthen barriers built on slopes to divert runoff.

After inspections found more than 300 violations in 2018, a consent decree entered against Mountain Valley classified future flaws to erosion control measures as either routine or ineffective.

In routine cases, the company was given 72 hours to fix the problems. When the problems were found to be ineffective — or critical — the deadline for corrective action was 24 hours.

“MVP has managed resources in 2020 to comply with the assigned deadlines in completing most, if not all, assigned corrective actions ... resulting in fewer instances of noncompliance,” DEQ said.

Since mid-February, according to Cox, there has been just one case of noncompliance. “The measures in place today are substantially better than those initially installed in 2018,” she wrote in an email.

At the water board meeting, about a dozen citizens cited many more problems than were identified by DEQ. But complaints of overwhelmed control measures after a major storm do not always mean there was a violation, according to stormwater compliance coordinator John McCutcheon.

“If you went to any construction site, any place in the state, after a big rain ... you would see unclear water being discharged,” he told the board.

Regulatory setbacks

For a while this fall, it seemed that Mountain Valley was well on its way to regaining permits that were earlier struck down by the courts.

The U.S. Fish and Wildlife Service reaffirmed its opinion, first rendered in 2017, that construction would not jeopardize endangered and threatened species of fish and bats. Three weeks later, on Sept. 25, the Army Corps of Engineers granted new permits for the pipeline to cross nearly 1,000 streams and wetlands. And in December, the Forest Service issued an environmental report that supported a 3.5-mile path through the Jefferson National Forest.

But the new approvals were followed by a new round of lawsuits.

On Nov. 9, the 4th U.S. Circuit Court of Appeals issued a stay to the stream-crossing permits while it considered environmentalists’ claims that the government had once again broken the rules to favor Mountain Valley.

The suspension of what’s called a Nationwide Permit 12 was a serious setback for the company.

Critics describe the blanket permit as a “one-size-fits-all” approval for all water bodies to be crossed by a pipeline — one that bypasses a more thorough examination that would come if the applicant sought individual permits for each stream or wetland.

“We have seen a Nationwide Permit 12 process that’s extremely broken, especially in the type of terrain the developers are trying to navigate,” Francis, with the league of conservation voters, said.

With Biden’s election, many pipeline opponents are calling for a rewrite of the permitting process.

Mountain Valley might not wait for that to happen. On Nov. 19, the company asked FERC to allow it to bore under streams along the first 77 miles of the pipeline in West Virginia.

When FERC approved the pipeline three years ago, it authorized Mountain Valley to temporarily dam streams, dig trenches along the bottom, bury the pipeline and then restore the water flow.

That method requires a Nationwide Permit 12. Boring does not.

If its request is granted, Mountain Valley would be able to complete the first 77 miles of the pipeline, up to the point where it connects with another pipeline, and put that portion in service while construction of the remaining 226 miles is finished later.

For the rest of the water crossings, “MVP continues to assess available pathways” that do not involve a Nationwide Permit 12, Cox said. That could include seeking more variances from FERC to allow boring, applying for individual permits, “or a combination thereof,” her email stated.

Mountain Valley has asked FERC to rule on its request for the 77-mile West Virginia segment by the end of the year. The agency sought written public comments through Dec. 21.

FERC’s online docket is filled with objections from those who say they don’t want to see the company take another shortcut, given all of the environmental problems to date.

But there are also comments like the one from Charles Poindexter, a Republican who represents Franklin County in the Virginia House of Delegates.

“My constituent comments strongly reflect that they wish it to be done expeditiously, the vegetation restoration completed, access to lands returned, and move on,” Poindexter wrote.

“I agree with them.”

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Laurence Hammack covers environmental issues, including the Mountain Valley Pipeline, and business and enterprise stories. He has been a reporter for The Roanoke Times for more than three decades.

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